Thursday, November 28, 2013

At odds over accurate NCR definition

KUCHING: Native customary rights (NCR) land came under scrutiny in the Assembly, with the Government and Opposition at odds over its definition.

Special Functions Minister Tan Sri Adenan Satem reiterated the government’s position that NCR land was confined to temuda, or farmed land.

He said the government respected and followed the Federal Court judgement in the case of Bisi Jinggot in July this year, which decided that NCR could be acquired by two modes, namely clearing untitled virgin jungle to create temuda and the other by receiving the temuda as a gift or inheritance.

“The decision of the Federal Court is based on native custom relating to the only two modes whereby NCR over land may be created or acquired. Land over which NCR is so created or acquired is known as temuda,” he told the House in his winding-up speech yesterday.

He also said the statutory definition for native customary land in the state Land Code was confined to temuda and did not include reserved land (pulau galau) and areas where the natives or their ancestors went to forage for food and forest produce.

According to him, this legal position was supported by a Court of Appeal judgement in the Nor Nyawai case which quoted the Orang Asli case of Sagong Tasi that the claim for NCR should not be extended to foraging areas.

“Therefore, the rights of the natives in Sarawak to land is confined to temuda, which is land where the natives have farmed and occupied continuously, but does not extend to the forest areas where they roamed and foraged for their livelihood,” he said.

Noting that Baru Bian (PKR-Ba’Kelalan) had called on the State Attorney-General’s Chambers to come up with a Bill to amend the Land Code so that the definition of native customary land would include pulau galau and pemakai menoa (communal land), Adenan said the government’s position was to adhere to the Federal Court decision in Bisi’s case whereby NCR could only be created and acquired overtemuda land.

“If (Baru) wishes to amend the law and feels he has the support of this House, he should present a Private Member’s Bill under his own name to make the amendment,” he said.

He also urged Baru, in his NCR cases, to explain to the courts the correct definition of NCR and native customary land according to the Land Code so that the courts could come to correct decisions based on the law passed by the State Assembly.

Baru, a leading NCR lawyer, later told reporters that he would table a private Bill to amend the Land Code in the next sitting if the matter was not taken up by the government.

He said the suggestion to amend the Land Code was merely to make it clear that native customary land includes temuda, pemakai menoa and pulau galau.

“NCR in Sarawak is protected under statutory provisions, which is the Land Code, and common law, which recognises adat (customs). And adat means pemakai menoa and pulau galau.

“You cannot argue that because this is not in the Land Code, therefore it is not theadat,” he said.

Baru also rebutted Adenan’s reply on the definition of NCR, saying that the same submission had been made by the State Attorney-General’s Chambers in NCR land cases.

“They are referring to the Bisi Jinggot Federal Court decision to say that natives in Sarawak are only able to claim NCR based on temuda area. But this is because the Bisi case was on temuda. The question was whether temuda land could be sold to another party outside the community and the Federal Court said it could not.

“It’s wrong to say that therefore the only way NCR can be created over land is by temuda. The Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum wrote in his supporting judgement that native customary land consists of temuda,pemakai menoa and pulau galau.

“That’s the flaw in the government’s view — they quoted the wrong judgement in the Bisi Jinggot case,” Baru said.

In fact, he added, the same argument was submitted by the State Attorney-General in four cases at the Court of Appeal last month on whether pemakai menoa and pulau galau were NCR land.

“This was thrown out by the Court of Appeal because it was the wrong submission, meaning to say their view that NCR land in Sarawak is only confined to temuda is wrong,” he said.

He suggested that the government seek a meeting with Malanjum, who was on the panel of Federal Court judges in the Bisi case, for a clarification on the definition of NCR.

“He would be the most neutral person to advise the government,” Baru said.

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